Pittman & Harrison Co. v. Sanders

234 S.W. 412, 1921 Tex. App. LEXIS 1002

• Court: Court of Appeals of Texas
• Decided: October 29, 1921
• Docket: No. 8589.
• Status: Published

Opinion

' HAMILTON, J.

Suit for damage was instituted by appellant, a corporatioi domiciled in Sherman, Grayson county. Tex., against appellee in the county court of Gray-son county. Appellee is a resident of Nolan county, Tex., and upon being served with citation he filed his plea of privilege to be sued in Nolan county, the county of his residence. The plea was controverted by appellant, and upon hearing the trial court sustained the plea of privilege, and ordered that the suit be transferred to the county court of Nolan county, Tex.

The undisputed facts before us, beyond the respective statements of facts contained in the plea of privilege and the answer thereto, we believe to Be sufficient to establish the contention of plaintiff to the effect that the suit was upon a written contract partly to be performed in Grayson county, Tex., and for which reason we think the plea of privilege should have been overruled, and the cause heard in the county court of Grayson county.

The only witness in the case was W. O. Scott, who testified in behalf of appellant. His evidence established the following facts: That a car of oats- was sold to Pittman & Harrison Company by T. T. Sanders, through Allen G. Smith, a broker, that the shipment was received at Sherman, in Grayson county, by Pittman & Harrison Company, and that the shipment was “to shipper’s order, notify Pittman & Harrison Company at Sherman, Texas.” Sanders drew draft upon Pittman & Harrison Company for the price of the oats, and to it was attached order bill of lading. The draft was paid at Sherman, Tex., by appellant, and' upon its being paid the bill of lading was delivered to Pittman & Harrison Company, and by it presented to the railroad company, whereupon, possession of the car of oats was delivered to Pittman & Harrison.

This is substantially the transaction pleaded by appellant, and it appears to reflect the contract and understanding between the parties, and what was done in pursuance of the contract with reference to the delivery of the shipment and the payment of the draft. Such set of facts, under the authorities, seems to constitute a written contract performable in the county in which the shipment is received. This being so, we are constrained to hóld that appellant discharged the burden resting upon it to prove facts sufficient to establish an exception to the venue article of the Revised Civil Statutes, and to bring the case within the exception contained in subdivision 5 of article 1830, Revised Civil Statutes. People’s Ice & Mfg. Co. v. Cotton Oil Co., 182 S. W. 1163; Harris v. Salvato, 175 S. W. 802; Harris v. S. A. & A. P. Ry. Co., 221 S. W. 1118; Harris v. Moller, 207 S. W. 963.

We will accordingly reverse and remand the cause? for further proceedings in conformity with the views above expressed.